Iron Workers Local 86

National Labor Relations Board - Board Decisions

Aug 10, 1992

308 N.L.R.B. 173 (N.L.R.B. 1992)

173
308 NLRB No. 41
IRON WORKERS LOCAL 86
1 The Respondent moved to strike the testimony of Christine Mrak,
allegedly for violating the Rules of Professional Conduct and abuse
of Board process. The General Counsel and the Charging Party op-
posed the motion. Thereafter, the Respondent filed a reply memoran-
dum in support of its motion to strike, the Charging Party filed a
motion to strike the reply memorandum, and the Respondent filed
a response to the Charging Party’s motion. We find no merit in the
Respondent’s motion to strike the testimony of Christine Mrak and
we deny the motion.
2 We affirm the judge’s denial of the Respondent’s motion to dis-
miss the complaint on the ground that it subsequently agreed to pro-
vide the information originally requested. There is no evidence that
the Respondent supplied the information. In any event, belated com-
pliance cannot retroactively cure an unlawful refusal to supply infor-
mation. Interstate Food Processing, 283 NLRB 303, 306 (1987), cit-
ing U.S. Gypsum Co., 200 NLRB 305, 308 (1972)
1 The Union filed the charge on June 4, 1991. The complaint
issued on July 1, and was amended during the trial.
2 The pleadings establish and I find that Respondent is an em-
ployer engaged in and affecting commerce within Sec. 2(2), (6), and
(7) of the Act, and that the Union is a labor organization within Sec.
2(5).
3 I find this unit to be appropriate for purposes of the Act.
Iron Workers Local Union 86 of the International
Association of Bridge, Structural and Orna-
mental Iron Workers, affiliated with the AFL–
CIO and Office and Professional Employees
International Union, Local 8, AFL–CIO. Case
19–CA–21533
August 10, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On February 21, 1992, Administrative Law Judge
Richard J. Boyce issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a reply brief, and the Charging
Party filed a brief in opposition to the Respondent’s
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record1 in light of the exceptions and briefs and has
decided to affirm the judge’s rulings,2 findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Iron Workers Local Union
86 of the International Association of Bridge, Struc-
tural and Ornamental Iron Workers, affiliated with the
AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order.
Patrick F. Dunham, Esq., for the General Counsel.
Hugh Hafer, Esq., of Seattle, Washington, for the Respond-
ent.
Clifford Freed, Esq., of Seattle, Washington, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this matter in Seattle, Washington, on September 4, 1991.
The complaint, based on a charge filed by Office and Pro-
fessional Employees International Union, Local No. 8, AFL–
CIO, CLC (the Union)1 alleges that Iron Workers Local
Union 86 of the International Association of Bridge, Struc-
tural and Ornamental Iron Workers, affiliated with the AFL–
CIO (Respondent), as an employer, has violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)
by refusing to comply with requests for information made by
the Union on May 21 and August 12, 1991.2
II. THE ALLEGED MISCONDUCT
A. Evidence
Respondent belongs to a multiemployer association for
purposes of collective bargaining involving certain of its em-
ployees. The Union represents the employees of Respondent
and the other association members in a unit described as:
All office employees employed by the employer-mem-
bers of the Association, excluding elected officers,
elected or hired business representatives, staff assistants
and organizers and supervisors as defined by the Act.3
These employees are covered by a labor agreement effective
from April 1, 1989, through March 31, 1992.
On July 5, 1990, Respondent discharged unit employee
Kathryn (Kathy) Whitaker. The Union grieved the action
pursuant to the agreement, and the matter eventually went to
arbitration.
The arbitrator, by decision dated April 18, 1991, con-
cluded that the discharge was not supported by ‘‘just cause’’
indeed, that Respondent had discharged Whitaker ‘‘in re-
prisal for filing grievances and [for] her husband’s refusal to
support [business manager] Mitchell in his election cam-
paign’’—and directed Respondent to reinstate her with back-
pay.
On May 7, 1991, Respondent’s and the Union’s respective
attorneys, Lawrence Schwerin and Christine Mrak, met to
discuss implementation of the arbitration award. Schwerin
presented Mrak with a certain Report of Investigation, dated
October 2, 1990, that Respondent recently had obtained from
the U.S. Department of Labor, Office of Labor-Management
Standards, which implicated Whitaker in the embezzlement
of union funds. Mrak discounted the report as ‘‘investiga-
tive’’ only, and not ‘‘determinative’’ of anything.
Schwerin conceded that the U.S. Attorney had said he
would not prosecute ‘‘because the evidence was insufficient
to sustain his burden of proof.’’ Even so, Schwerin an-
nounced, Respondent planned to sue Whitaker civilly,
‘‘where the standard of proof would be less stringent’’; and
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The implication being that Whitaker’s bondability thereby would
be restored.
5 The letter did not speak expressly to request numbered 5, either,
but didsuggest that the parties secure the arbitrator’s ‘‘continuing ju-
risdiction’’ to facilitate resolution of issues outstanding. The com-
plaint does not allege a violation with respect to that request.
6 Mrak presumably meant to say May 21—the date of her previous
letter to Schwerin.
7 Respondent hired Whitaker in 1978.
had applied to its bonding company for reimbursement of the
missing funds. Schwerin added that, because the bonding
company knew about the Report of Investigation, it had ter-
minated Whitaker’s bond, rendering her ‘‘unemployable’’ by
Respondent. Schwerin continued that he therefore would seek
vacation of the arbitration award.
Schwerin then proposed this alternative: If Whitaker would
‘‘relinquish’’ her rights under the award, Respondent would
forget the lawsuit, leave the award undisturbed, and with-
draw its application to the bonding company.4 Mrak said she
would confer with Whitaker and ‘‘get back to’’ Schwerin.
Mrak ‘‘got back to’’ Schwerin by letter dated May 21. In
it, she attacked the Report of Investigation, asserting not only
that the U.S. Attorney had decided the evidence on which it
relied was ‘‘insufficient to prove the conclusions in the Re-
port,’’ but that it contained purported statements of fact Re-
spondent knew to be ‘‘false.’’ The letter proclaimed that Re-
spondent would be ‘‘liable for malicious prosecution’’ should
it sue Whitaker, then concluded:
Unless Local 86 is prepared to rescind its threats and
comply with the arbitration award, OPEIU requires the
following information to further represent its members:
1. An opportunity to review all originals, and to
make copies of all records provided to OLMS or the
U.S. Attorney.
2. The name, address and telephone number of Local
86’s bonding company.
3. All contracts, memos, claims, applications, cor-
respondence and other documents between Local 86
representatives or attorneys, and the bonding company.
4. A detailed calculation of the backpay and benefits
which Local 86 believes is due Kathy under the terms
of the arbitration award.
5. Your available hearing dates between now and
June 14, 1991.
Please provide the foregoing no later than May 31,
1991.
Schwerin responded by letter dated May 31. It stated, with
regard to Mrak’s request numbered 2:
Local 86 bonding is governed by its International Con-
stitution Article XXI, Section 20. The International has
arranged for bonding for all its locals. The insurance
broker is the MacLaughlin Company, 1725 DeSayo
Street N.W., Washington, D.C. 20036 and the bonding
company is Fidelity and Deposit Company of Mary-
land. I have been advised that the bonding insurance
agreement contains a Section 10 reading: ‘‘This bond
shall be deemed cancelled as to any employee: (a) im-
mediately upon discovery by the insured, or by a part-
ner or officer thereof not in collusion with such em-
ployee of any fraudulent or dishonest act on the part of
such employee whether in the service of the insured or
otherwise. . . .’’ Local 86, through the Department of
Labor’s investigation had discovered that Kathy
Whitaker has engaged in a fraudulent or dishonest act
and the bond is therefore cancelled as to her.
Schwerin’s letter added:
If Ms. Whitaker still desires reinstatement, federal law,
29 U.S.C. § 501, requires that she be bonded. Should
Ms. Whitaker or Local 8 on her behalf establish her eli-
gibility for bonding with a different bonding company,
please advise us. Before accepting such a bond Local
86 will require that the bonding company be informed
of the results of the Department of Labor investigation.
As concerns Mrak’s request numbered 4, Schwerin’s May
31 letter devoted two pages to detailed and sundry observa-
tions and questions ‘‘for the purposes of narrowing the
issues,’’ but without positing definitive figures or calcula-
tions. The letter ignored requests numbered 1 and 3.5
Mrak rejoined by letter dated June 3, stating in part:
On May 3, 1991,6 I requested the name, address and
telephone number of Local 86’s bonding company, and
a copy of all contracts, memos, claims, applications,
correspondence and other documents between Local 86
representatives or attorneys, and the bonding company.
In response you provided only the name and address
of the broker and name of the bonding company.
On May 3, 1991, I requested an opportunity to re-
view all originals, and to make copies of all records
provided to OLMS or the U.S. Attorney.
You provided nothing in response.
By refusing to provide me the above you have pre-
vented me from effectively representing Ms. Whitaker
regarding issues you have interjected to excuse Local
86’s refusal to comply with the award. I will seek all
available sanctions.
On July 2, the arbitrator’s continuing jurisdiction having
been secured, he convened a supplemental hearing to con-
sider Whitaker’s backpay entitlement. Schwerin moved that
he instead vacate his award. Mrak countermoved that he
limit the inquiry to the issue of backpay and not ‘‘revisit’’
the validity of the award. The arbitrator denied Schwerin’s
motion and granted Mrak’s, then continued the matter to give
Respondent more time to assemble backpay data.
By letter to Schwerin dated August 12, Mrak wrote:
In relation to OPEIU’s representation of Kathy
Whitaker please provide me the Local 86 accountant re-
ports since 1978.7 In regard to the audit which prompt-
ed the OLMS investigation please also provide the ac-
countant’s working papers, and all communications be-
tween the accountant and Local 86, related thereto.
There is no accountant-client privilege in Washing-
ton.
Attorney Hugh Hafer, an associate of Schwerin’s, replied
by letter dated August 15:
175IRON WORKERS LOCAL 86
8 Quoting from Ohio Power Co., 216 NLRB 987, 991 (1975).
9 That the Union obtained some of the information by other means
does not cure Respondent’s failure. Hollywood Film Co., 213 NLRB
584, 592 (1974).
10 I hereby deny Respondent’s motion, dated December 4, 1991,
that I dismiss the complaint on the ground that, by letter dated No-
vember 7, it had ‘‘agreed to provide the information originally re-
quested.’’ I have no evidence that production in fact has occurred;
moreover, production so belated does not exonerate. E.g., Interstate
Food Processing, 283 NLRB 303, 306 (1987).
This will acknowledge receipt of your letter dated
August 12, 1991, addressed to Larry Schwerin. Since
the arbitrator rejected evidence concerning the DOL
audit and/or bondability of Whitaker, such matters are
not presently pending in the grievance and arbitration
proceeding. Accordingly, your request for information
is denied.
Mrak answered Hafer with this, dated August 19:
I received you [sic] letter of August 15, 1991, where-
in you decline to produce the information I requested
on August 12 because the issue to which it relates is
‘‘not presently pending in the grievance and arbitration
proceeding.’’ While that is not the legal standard for an
employer’s obligation to produce information, I point
out that Local 86 continues to insinuate the alleged em-
bezzlement issue into the parties’ discussion of this
grievance.
Mr. Schwerin has made it clear on many occasions
that Local 86 will continue to refuse to comply with the
arbitration decision, and will seek to vacate it, based
upon the issue to which the information request relates.
In addition, Mr. Schwerin has stated that any settlement
of this grievance must include a deduction for the
amount Local 86 alleges Whitaker embezzled.
In order to evaluate Local 86’s position, discuss po-
tential settlement, and continue representing Whitaker
to achieve a final resolution of this dispute we need to
have the requested information.
None of the above should be news to you. If Local
86 is prepared to drop the embezzlement claim, rein-
state Whitaker and pay her the sums ordered by the ar-
bitrator I will withdraw my request for information. If
you are not prepared to do this, it is quite obvious that
the issue to which the requested information relates is
very much ‘‘presently pending’’ between the parties.
On August 24, Schwerin told Mrak that Respondent would
not consider ‘‘any resolution’’ of Whitaker’s backpay entitle-
ment ‘‘that did not include a deduction of’’ the approxi-
mately $14,000 she supposedly had embezzled. Schwerin
also revived the specter of a lawsuit and said he would ap-
peal the arbitrator’s denial of the motion to vacate.
After the abbreviated July 2 supplemental hearing, mean-
while, the arbitrator engaged Mrak and Schwerin in two
‘‘teleconferences’’ dealing with the backpay issue; and, on
about August 26, the two attorneys submitted detailed briefs
to the arbitrator—and to each other—setting forth their posi-
tions, figures, and calculations. Schwerin’s asked the arbitra-
tor to reconsider Respondent’s motion to vacate, as well.
Beyond expressly denying Mrak’s August 12 request for
information, Respondent never complied with requests num-
bered 1 and 3 in her May 21 letter, and complied incom-
pletely with that numbered 2. Unaided by Respondent, Mrak
did locate and speak with an attorney for the bonding com-
pany, who told her Whitaker’s ‘‘bonding status would be un-
affected unless [Respondent] sustained its burden to prove
the allegations of embezzlement.’’
The supplemental arbitration matter was ongoing at the
time of the present trial.
B. Conclusions
The Board stated in Doubarn Sheet Metal, 246 NLRB
886, 888 (1979):
[A]n employer has an obligation, as part of its duty to
bargain in good faith, to provide information needed by
a bargaining representative for the proper performance
of its duties. The obligation extends beyond contract
negotiations to matters of contract administration, in-
cluding the processing of grievances. An employer has
no obligation to provide information which is plainly ir-
relevant to any dispute concerning the bargaining unit,
but it must supply information which is of even prob-
able or potential relevance.
See also NLRB v. Acme Industrial Co., 385 U.S. 432, 435–
437 (1967); Island Creek Coal Co., 292 NLRB 480, 487
(1989); United Technologies Corp., 274 NLRB 504, 506
(1985).
Regarding the standard by which relevance is to be meas-
ured, the Board stated in Island Creek Coal Co., supra at 292
NLRB 487:8
Where the information sought covers terms and condi-
tions of employment within the bargaining unit, thus in-
volving the core of the employer-employee relationship,
the standard of relevance is very broad, and no specific
showing is normally required . . . . It is not required
that there be grievances or that the information be such
as would clearly dispose of them. The Union is entitled
to the information . . . . to determine whether it should
exercise its representative function in the pending mat-
ter, that is, whether the information will warrant further
processing of the grievance or bargaining about the dis-
puted matter.
Respondent, by its post-award injection of the Report of
Investigation, seeks to frustrate the award. The Union, by re-
quests numbered 1, 2, and 3 in Mrak’s May 21 letter and
by the request in her August 12 letter, seeks information to
assist it in evaluating and responding to the Report—that is,
returning to the above extract from Island Creek Coal Co.,
to help it determine if ‘‘further processing of the grievance
or bargaining about the disputed matter’’ (emphasis added)
is warranted.
I find that the information identified in the preceding para-
graph meets the applicable standard of relevance, and con-
clude that Respondent violated Section 8(a)(5) and (1) by
failing to comply with requests numbered 1 and 3 in the May
21 letter, by complying incompletely with request numbered
2,9 and by denying the August 12 request.10
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 I hereby deny any outstanding motions inconsistent with this
recommended Order. If no exceptions are filed as provided by Sec-
tion l02.46 of the Board’s Rules and Regulations, the findings, con-
clusions, and recommended Order shall, as provided in Section
l02.48 of the Rules, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Request numbered 4 in Mrak’s May 21 letter appears to
call for argument or theory, as opposed to information. Be-
yond that, the weight of evidence indicates that the parties
have been working meaningfully with the arbitrator in this
area, and neither the General Counsel nor the Union argues
in brief that Respondent breached its bargaining obligation in
this particular. I conclude in all the circumstances that Re-
spondent has not violated the Act as concerns request num-
bered 4.
CONCLUSIONS OF LAW
Respondent violated Section 8(a)(5) and (1) of the Act by
failing to comply with requests numbered 1 and 3 in the
Union’s letter dated May 21, 1991; by complying incom-
pletely with request numbered 2 in that letter; and by deny-
ing the request in the Union’s letter dated August 12, 1991.
Respondent did not violate the Act as concerns request
numbered 4 in the May 21 letter.
REMEDY
Having found that Respondent is violating Section 8(a)(5)
and (1) by failing to comply with the Union’s requests for
certain information, I shall recommend that it cease and de-
sist therefrom; and, affirmatively, to effectuate the policies of
the Act, that it promptly supply said information.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Iron Workers Local Union 86 of the
International Association of Bridge, Structural and Ornamen-
tal Iron Workers, affiliated with the AFL–CIO, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Office and Pro-
fessional Employees International Union, Local No. 8, AFL–
CIO, CLC, by failing and refusing to comply with requests
numbered 1 and 3 in its letter dated May 21, 1991; by com-
plying incompletely with request numbered 2 in that letter;
and by denying the request in its letter dated August 12,
1991.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take this affirmative action necessary to effectuate the
policies of the Act.
(a) Promptly furnish to Local No. 8 the information it re-
quested by letters dated May 21 and August 12, 1991, which
Respondent has unlawfully withheld.
(b) Post at its office in Seattle, Washington, copies of the
attached notice, marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by Respondent’s authorized representative,
shall be posted by it immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees customarily are
posted. Respondent shall take reasonable steps to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 19, in writing
within 20 days from the date of this Order what steps Re-
spondent has taken to comply.
I hereby dismiss that portion of the complaint I have found
to be without merit.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with Office
and Professional Employees International Union, Local No.
8, AFL–CIO, CLC, by failing and refusing to comply with
information requests numbered 1 and 3 in its letter dated
May 21, 1991; by complying incompletely with request num-
bered 2 in that letter; and by denying the request in its letter
dated August 12, 1991.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL promptly furnish to Local No. 8 the information
it requested by letters dated May 21 and August 12, 1991,
which we have unlawfully withheld.
IRON WORKERS LOCAL UNION 86 OF THE
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORK-
ERS, AFFILIATED WITH THE AFL–CIO